REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.                         OF 2010 [Arising out of S.L.P.(C) No. 8931 of 2007]

State of Maharashtra & Ors. — Appellants

VERSUS

Sangharaj Damodar Rupawate & Ors. — Respondents

J U D G M E N T

D.K. JAIN, J.:

Leave granted.   

2.This appeal, by special leave, filed by the State of Maharashtra and its  

functionaries, arises out of the judgment dated 26th April, 2007 delivered  

by the High Court of Judicature at Bombay in Writ Petition No.1721 of  

2004.  By the impugned judgment, passed in an application under Section  

96 of the Code of Criminal Procedure,1973 (for short “the Code”) read  

with Article 226 of the Constitution of India, the High Court has set aside

and quashed notification dated 20th December, 2006, issued in the name  

of Governor of Maharashtra in exercise of the powers conferred by sub-

section (1) of Section 95 of the Code, directing forfeiture of every copy of  

the book captioned as “Shivaji – Hindu King in Islamic India” written by  

one Prof. James W. Laine.

3.The three writ petitioners, who are respondents No.1, 2 and 3 herein,  

are respectively stated to be a well known lawyer and a public activist in  

the Ambedkarite movement, intended to mobilize the deprived sections  

of the society; (ii) a well-known film maker, whose documentaries are  

stated to be known the world over for their artistic finesse,  conveying  

democratic and secular message and (iii) a social activist.  Respondents  

No. 4 to 6 impleaded as such vide this Court’s order dated 29th August,  

2007  respectively  are  Prof.  James  W.  Laine,  the  author  of  the  book,  

Oxford  University  Press,  India,  the  publisher  through  its   Constituted  

Attorney  Mr.  Manzar  Sayed  Khan  and  Mr.  Vinod  Hansraj  Goyal,  

proprietor of Rashtriya Printing Press, Delhi, the printer of the book.  

4.For the purpose of appreciation of the questions raised, the foundational  

facts may be noticed.  These are:

On 28th May, 2003, respondent No. 5, the publisher entered into an  

agreement with Oxford University Press, U.S.A. for publishing in India a  

paper-bound  book  entitled  “Shivaji  –  Hindu  King  in  Islamic  India”  

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authored  by  Prof.  James  W.  Laine  (respondent  No.4),  a  Professor  of  

Religious  Studies,  Macalester  College,  U.S.A.   The  said  book  was  

originally published by Oxford University Press, Inc., U.S.A.  As per the  

terms  of  the  agreement,  respondent  No.5  agreed  to  reprint  the  book  

without any changes or deletions.  In all, 803 copies of the book were  

published i.e. 488 copies in June and 315 copies in October, 2003 and  

was released in July 2003 and 215 copies were sold in the month of July  

itself.   

On 10th November 2003, the publisher (respondent No.5) received  

a letter from four historians whereby the publisher and the author had  

been  asked  to  retract  the  objectionable  statement  complained  of  and  

tender  an apology.  Mr.  Manzar  Sayed Khan, expressed regrets  for the  

said  statement  and  informed  the  objectors  that  instructions  had  been  

issued to all his offices in India to immediately withdraw all copies of the  

book from circulation.  After withdrawal of the book from circulation, a  

mob at Pune blackened the face of a Sanskrit Scholar Shri Shashikant  

Bahulkar  whose name appeared in  the  acknowledgement  of  the  book,  

having helped the author, Prof. James W. Laine, by providing him with  

some information during his  visit  to  Pune.   This  incident  was  widely  

reported in the press.  On 28th December, 2003, the author Prof. James W.  

Laine  sent  a  fax,   apologising  for  the  mistake,  if  any,  committed  in  

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writing the passage and stated that he only was responsible for the said  

statement written in the book, and the publisher was not at all responsible  

for  the  same.   On  5th January,  2004,  a  mob  of  100  to  125  persons  

allegedly  belonging  to  the  Sambhaji  Brigade  ransacked  Bhandarkar  

Oriental Research Institute (BORI), Pune and destroyed a large number  

of books and rare manuscripts.  This incident was also widely reported in  

the press.   

On 7th January, 2004, respondent No.4, the author in an interview,  

explained the reason for writing the book and expressed deep anguish at  

the destruction of rare manuscripts and books in BORI, Pune.  Four days  

after  the  alleged  incident  i.e.  on  9th January,  2004,  the  State  of  

Maharashtra,  the  appellant  herein,  registered  a  first  information  report  

(for short “FIR”) at Deccan Police Station, Pune, against respondents No.  

4 to 6 i.e.   Prof. James W. Laine, the author,  Mr. Manzar Sayed Khan,  

the publisher and  Mr. Vinod Hansraj Goyal, the printer of the book under  

Sections 153, 153-A and 34 of the Indian Penal Code, 1860 (for short  

“the IPC”).

On 15th January,  2004,  in exercise  of  powers  conferred by sub-

section (1) of Section 95 of the Code, the Government of Maharashtra  

issued  a  notification  declaring  that  every  copy  of  the  aforementioned  

book shall  be forfeited to the Government.   The said notification was  

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challenged in the Bombay High Court by respondents No.1 to 3 herein.  

However,  during  the  pendency  of  the  petition,  this  notification  was  

withdrawn  and  another  notification  dated  20th December,  2006  was  

issued.  The notification reads as follows:

“GENERAL ADMINISTRATION DEPARTMENT Mantralaya, Mumbai 400 032,                                            dated  

the 20th December, 2006

NOTIFICATION  

CODE OF CRIMINAL PROCEDURE, 1973.

No.  BAP-2004/422/C.R.113/2004/XXXIV.  –  Whereas,  Shri Chhatrapati Shivaji Maharaj is revered by various sections  of the people domiciled in the State of Maharashtra;

And Whereas,  the Oxford University Press having its  office at YMCA Library Building, Jai Singh Road, New Delhi  110 001, has in the Year 2003, published a book, captioned as  “SHIVAJI – Hindu King in Islamic India” written by one Shri  James W. Laine, having ISBN 019 5667719 containing 127  pages (hereinafter referred to as “the said Book”);

And  Whereas,  the  said  author  has  in  his  said  Book,  made several derogatory references specified in the Schedule  appended hereto regarding Shri Chhatrapati Shivaji Maharaj,  in particular  about his parentage and the Bhosale family  to  which he belonged;

And Whereas, publication of the said Book containing  the  said  derogatory  references  is  prejudicial  to  the  maintenance  of  harmony between  different  groups  and has  disturbed the public tranquillity;

And  Whereas,  the  publication  and  circulation  of  the  said Book, has not  only already resulted in causing enmity  between  the  persons  who  revere  Shivaji  and  other  persons  who may not so revere;  but is  likely to continuously cause  such enmity;  

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And  Whereas,  the  said  author  has  in  the  “ACKNOWLEDGMENTS” to the said Book has expressed  gratitude  to  the  “Bhandarkar  Oriental  Research  Institute,  Pune” and the librarian and other Scholars therein;

And Whereas, after publication of the said book, there  was agitation against the said “Bhandarkar Oriental Research  Institute,  Pune”,  by  members  of  an  association  called  as  “Sambhaji  Brigade”  and certain  other  people  revering  Shri  Chhatrapati Shivaji Maharaj;

And  Whereas,  for  publication  of  the  said  Book,  an  offence under sections 153, 153A read with Section 34 of the  Indian  Penal  Code  has  been  registered  in  the  Deccan  Gymkhana Police Station, Pune as C.R. No. 10 of 2004.

And  Whereas,  for  the  reasons  aforesaid,  the  Government  of  Maharashtra  is  of  the  opinion  that  the  circulation  of  the  said  Book  containing  scurrilous  and  derogatory  references  against  Shri  Chhatrapati  Shivaji  Maharaj  has  resulted  in  causing  enmity  between  various  communities and has led to acts of violence and disharmony  and that any further circulation of the said Book is likely to  result  in  breach  of  peace  and  public  tranquillity  and  in  particular between those who revere Shri Chhatrapati  Shivaji  Maharaj and those who may not; and cause disturbances to  public tranquillity and maintenance of harmony between such  groups and as such the said Book should be forfeited;  

Now, therefore, in exercise of the powers conferred by  sub-section  (1)  of  Section  95  of  the  Code  of  Criminal  Procedure,  1973  (2  of  1974),  read  with  Section  21  of  the  General  Clauses  Act,  1897  (10  of  1897)  and  of  all  other  powers enabling it in that behalf and in supersession of the  Government  Notification,  General  Administration  Department, No. BAP-2004/422/C.R.113/2004/XXXIV, dated  the 15th January 2004, the Government of Maharashtra hereby  declares that every copy of the said Book shall be forfeited to  the Government.   

Schedule

1. “So when Shivaji opened his eyes on the world,  he was nurtured by a mother who had been deserted by her  

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husband and left to give birth in a hill fortress 60 kms. North  of Pune.” (Introduction page 4).

2. “Looking back from the coronation in 1674, the  Killing  of  Afzal  Khan  in  1659  was  not  simply  an  act  of  courage,  it  was premeditated violence in the  service of  the  Brahmanic world order.”  (Chapter  II,  The Epic Hero,  page  25).

3. “Thus Shivaji could argue that his family should  not be classified a Kunbi peasant or shudra clan, but was, in  fact,  related  to  Rajput,  Aryan  Kshatriyas.   This  led  to  a  general ambiguity about the status of all Marathas.” (Chapter  IV “The Patriot”, page 66).

4. “Here we have a kind of Brahmin prejudice that  Marathas might make admirably fierce warriors but will not  have prudence of the Brahmins.  Thus Ranade argues that the  national  movement  drew  on  the  talents  and  loyalty  of  all  classes,  but  he  maintains  the  critical  importance  of  the  Brahmins Ramdas and Dadaji  in his narrative.  (Chapter  IV  “The Patriot”, page 76).

5. “In other words, Shivaji’s secularism can only be  assured if we see him as motivated less by patriotism than by  simple quest of power.” (Chapter IV “The Patriot”, page 77).

6. “Shivaji’s  parents  were  married  under  trying  circumstances.   They  were  children,  and  Jijabai’s  parents  opposed  the  match,  considering  themselves,  as  Jadhava  (Yadavas), to be too aristocratic to accept a groom from the  Bhosles, a clan not accepted as one of ninety-six upper class  Maratha families. (Chapter V “Cracks in the Narrative”, page  91).

7. “The  repressed  awareness  that  Shivaji  had  an  absentee  father  is  also  revealed  by  the  fact  that  Maharashtrians  tell  jokes  naughtily  suggesting  that  his  guardian Dadaji Konddev was his biological father.” (Chapter  V “Cracks in the Narrative”, page 93).

8. “One  could  assume,  as  Sarkar  did,  that  he  (Shivaji) agreed to go to Aurangazeb’s court in Agra because  he  had  hopes  (sic)  of  being  made  Mughal  Viceroy  of  the  Deccan.  Had he received such an honour (sic), it is doubtful  

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that he would have planned a coronation eight years later, but  would have conducted his career much as his father did as an  Aadil Shahi noble and Governor of Bangalore.” (Chapter V  “Cracks in the Narrative”, page 99).

By  order  and  in  the  name  of  the  Governor  of  Maharashtra,  

MANISHA MHAISKAR, Joint Secretary to Government.”  

5.In  view  of  the  said  development,  with  the  leave  of  the  Court,  the  

petition was amended and challenge to notification dated 20th December,  

2006 was laid mainly on the grounds that: (1) there was no material to  

show that  the  publication  of  the  book  had  resulted  in  disturbance  of  

public tranquillity or maintenance of harmony between various groups as  

set  out  therein,  and (2)  the  publication  does  not  disclose  any  offence  

under Section 153-A of the IPC.  Finding substance in both the grounds,  

as stated above, by the impugned judgment, the High Court has quashed  

and set  aside the notification dated 20th December,  2006 by observing  

thus:

“We called upon the learned Associate Advocate General to  show  us  any  material  in  their  possession  which  would  indicate,  that  the publication of the book is  causing enmity  between  various  communities  and  which  were  those  communities.  The learned Associate Advocate General was  unable to produce or disclose any such material or which were  the  groups  based  on  religion,  race,  language  or  religion  or  caste  or  communities  who do not  revere  Shree  Chhatrapati  Shivaji Maharaj.  The only answer was, that the order is based  upon the grounds set out in the notification.  In our opinion, to  make a legal order under Section 95 of the Code of Criminal  

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Procedure, apart from the fact that offence as set out therein  must be indicated, the notification must disclose the grounds  based  on  which  the  State  has  formed  an  opinion,  that  the  author by his publication sought to promote or attempted to  promote  disharmony  or  feeling  of  enmity  between  various  groups as set out therein.  All that is pointed out to us is, that  subsequent  to  the  publication  of  the  book,  there  was  an  agitation against Bhandarkar Oriental Research Institute, Pune  by members of an Association called as “Sambhaji Brigade”  and certain other  people revering Shree Chhatrapati  Shivaji  Maharaj. We pointedly asked the learned Associate Advocate  General whether the employees of the Bhandarkar Institute,  Pune constituted that group or class.  It was fairly conceded  before us that it was not so.  Whether a group of employees  would constitute a group is not required to be answered.  In  other  words,  there  is  nothing  on  record  to  show  that  the  publication was likely to promote disharmony or  feeling of  enmity between various groups, as likely to cause disturbance  to  public  tranquillity  and maintenance  of  harmony between  various groups.  Bhandarkar Oriental Research Institute Pune,  enjoys an international reputation as a research institute in the  State  of Maharashtra.   It  was unfortunate that  for whatever  reasons  the  said  institute  was  vandalized  and  precious  documents destroyed History is the loser.”  

6.Being  aggrieved,  the  State  of  Maharashtra  and  its  functionaries  are  

before us in this appeal.   

7.We  have  heard  Mr.  Shekhar  Naphade,  learned  Senior  Counsel  

appearing on behalf  of  the  petitioners;  Mr.  Prashant  Bhushan,  learned  

counsel appearing on behalf of the respondents No.1 to 3 and Ms. Kamini  

Jaiswal, learned counsel appearing on behalf of the respondents No.4 to  

6.  

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8.Prefacing  his  arguments  with  the  historical  perspective  of  rivalry  

between Brahmins and Marathas, both at the social and the political level,  

Mr.  Naphade submitted  that  some of the  words used in the book and  

culled out in the notification under different items clearly try to resurrect  

the social and political tensions between Brahmins and Marathas and try  

to drive a wedge between the said two communities.  It was submitted  

that the notification in question clearly sets out that the book contains  

derogatory references to Chhatrapati Shivaji Maharaj and is prejudicial to  

the maintenance of harmony between different groups and that in fact it  

had disturbed the social tranquillity of the State.  It was contended that  

the notification has to be read in its entirety and if it is so read, it clearly  

refers to threat to maintenance of harmony between two groups, which is  

clearly demonstrated by an attack on Bhandarkar Institute by Sambhaji  

Brigade as a sequel to the publication and circulation of the book.  While  

candidly conceding that the operative part  of the notification does not  

specifically  refer  to  conflict  between  Brahmins  and  Marathas,  learned  

counsel  urged  that  the  notification  has  to  be  read  in  the  historical  

background and if it is so read, the only possible conclusion is that the  

two groups referred to in the notification mean Brahmins on the one hand  

and Marathas on the  other.   According to the  learned counsel,  it  is  a  

settled rule of interpretation that while construing any notification of this  

nature, the historical background can be taken into account.  

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9.Mr.  Naphade  also  contended  that  in  a  criminal  case  the  burden  of  

establishing that a case under Sections 153 and 153-A of the IPC is made  

out, is on the State, whereas, while judging the action of the Government  

under Section 95 of the Code, the parameters are qualitatively different  

inasmuch as there is a presumption that the notification is valid and the  

burden to show that the decision of the Government to forfeit the book is  

without any foundation, is on the writ petitioners.   

10.Learned counsel  also argued that  the subjective satisfaction of  the  

Government  as  contemplated  in  Section  95  of  the  Code  cannot  be  

canvassed either in an application under Section 96 of the Code or in a  

writ  petition  under  Article  226 of  the  Constitution.   According to  the  

learned counsel, neither the High Court nor this Court can sit in appeal  

over  the  Government’s  decision  to  forfeit  the  book.   Relying  on  the  

decision of the Bombay High Court in the case of Gopal Vinayak Godse  

Vs. The Union of India and Others1, learned counsel submitted that if a  

book  has  a  tendency  to  create  a  rift  between  the  two  different  

communities, then Article 19(1)(a) of the Constitution cannot be pressed  

into service, even on the ground that the book contains historical truth.   

11.As regards the concession of the counsel for the State before the High  

Court, as recorded in the impugned judgment, it is pleaded in the written  

1 AIR 1971 Bombay 56

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submissions  that  the  concession  so  made  was  clearly  under  

misconception of law and facts.  It is pleaded that the concession made by  

an Additional Advocate General is not binding on the Government.  In  

support of the said stand, reference is made to the decisions of this Court  

in M.T. Khan and Others Vs. Govt. of A.P. and Others2 and Periyar and  

Pareekanni Rubbers Ltd.  Vs. State of  Kerala3.   Learned counsel  also  

placed  reliance  on  the  decision  of  this  Court  in  Baragur  

Ramachandrappa and Others  Vs. State  of  Karnataka and Others4 in  

support of his proposition that Sections 95 and 96 of the Code, when read  

together, are clearly preventive in nature and are designed to pre-empt  

any disturbance to public order and, therefore, if a forfeiture is called for  

in public interest, it must have pre-eminence over any individual interest.  

12.Per contra, Mr. Prashant Bhushan, while emphasizing that the book  

in question, which makes historical investigation to discover and interpret  

Shivaji,  the  great  hero  of  17th Century  in  India  and  Maharashtra  in  

particular,  is  a  scholarly,  historical  piece  about  a  much  revered  and  

admired historical figure of India, vehemently submitted that even if there  

were  any  critical  comments  about  Shivaji  Maharaj,  banning  the  book  

would  strike  at  the  very  root  of  the  fundamental  right  to  freedom of  

expression  in  a  democracy.  It  was  asserted  that  there  is  nothing  

2 (2004) 2 SCC 267 3 (1991) 4 SCC 195 4 (2007) 5 SCC 11

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disparaging or  malicious  about Shivaji  and his  parents  in  the  book as  

alleged in the notification.  Learned counsel maintained that there is no  

scurrilous matter in the book which is prejudicial to the maintenance of  

public tranquillity along with law and order and, in any case,  it  is the  

primary responsibility of a Government to prevent mischief-maker from  

taking the law into their own hands.  In support of the proposition that it  

is for the State to maintain public order and the books, films, etc. cannot  

be banned merely based on an apprehension of clashes, learned counsel  

placed reliance on the decision of this Court in  S. Rangarajan  Vs. P.  

Jagjivan Ram and Others5.

13.Learned  counsel  also  urged  that  on  facts  in  hand,  the  conditions  

requisite for invoking Section 95 of the Code are not fulfilled inasmuch  

as apart from the fact that detailed grounds have not been provided to the  

respondents, it is evident from the notification that all that has been stated  

therein is that the book contains scurrilous and derogatory references to  

Shri  Chhatrapati  Shivaji  Maharaj  and that  has  caused enmity  between  

various communities and has led to acts of violence and disharmony and  

that any further circulation of the book is likely to result  in breach of  

peace and public tranquillity and in particular, between those who revere  

Shri Chhatrapati Shivaji Maharaj and those who may not.  It was also  

pleaded  that  the  notification  is  neither  based  on  grounds  that  offence  5 (1989) 2 SCC 574

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under Section 153-A of the IPC was made out nor it has been shown that  

how the references are derogatory or scurrilous and above all, even the  

communities,  who were  alienated  from each  other  or  whose  religious  

beliefs were hurt, have not been named or identified.  

14.Learned  counsel  then  contended  that  paragraphs  in  the  book,  

complained of, do not constitute an offence either under Section 153 or  

under  Section  153-A  of  the  IPC  as  in  the  notification  there  is  no  

allegation that  the book has caused or likely to cause enmity between  

different  classes  of  the  society  or  has  created  a  situation  of  hatred  

between  or  among  particular  religions/castes/social  groups  as  

contemplated in  Section 153-A of the  IPC.   It  is  pointed out  that  the  

notification does not even identify the communities, which, according to  

the  Government,  were  allegedly  alienated  from  each  other  or  whose  

religious beliefs had been wounded.  Reliance was placed on the decision  

of this  Court in  Manzar Sayeed Khan  Vs. State of Maharashtra and  

Another6, relating to the same book, wherein, while holding that the book  

did not make out an offence under Section 153-A of the IPC, the FIR  

registered against the Author of the book (respondent No.4) was quashed.  

Reliance was also placed on the decisions of this Court in Bilal Ahmed  

Kaloo Vs. State of A.P.7 and Harnam Das Vs. State of Uttar Pradesh8.  

6 (2007) 5 SCC 1 7 (1997) 7 SCC 431 8 AIR 1961 SC 1662

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Learned counsel thus asserted that there was no justification whatsoever  

for  ordering forfeiture  of  the book and the impugned notification is  a  

gross misuse of Section 95 of the Code.   

15.Before  evaluating  the  rival  contentions,  a  brief  reference  to  the  

relevant provisions of the Code and the precedents on the point would be  

necessary.   

16.Section 95 of the Code reads as follows:

“95. Power to declare certain publications forfeited and to  issue search-warrants for the same.—(1) Where—

(a) any newspaper, or book, or

(b) any document,

wherever printed, appears to the State Government to contain  any  matter  the  publication  of  which  is  punishable  under  section 124A or section 153A or section 153B or section 292  or section 293 or section 295A of the Indian Penal Code (45  of 1860), the State Government may, by notification, stating  the grounds of its opinion, declare every copy of the issue of  the newspaper containing such matter, and every copy of such  book or other document to be forfeited to Government, and  thereupon  any  police  officer  may  seize  the  same  wherever  found in India and any Magistrate may by warrant authorise  any police officer not below the rank of sub-inspector to enter  upon and search for the same in any premises where any copy  of such issue or any such book or other document may be or  may be reasonably suspected to be.

(2) In this section and in section 96,--

(a) "newspaper" and "book" have the same meaning as  in the Press and Registration of Books Act, 1867 (25 of  1867);

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(b)  "document"  includes  any  painting,  drawing  or  photograph, or other visible representation.

(3) No order passed or action taken under this section shall  be  called  in  question  in  any  Court  otherwise  than  in  accordance with the provisions of section 96.”

17.Section 96 of the Code, relevant for the purpose, is as under:

“96. Application to High Court to set aside declaration of  forfeiture.  —  (1)  Any  person  having  any  interest  in  any  newspaper,  book or  other  document,  in  respect  of  which  a  declaration of forfeiture has been made under section 95, may,  within two months from the date of publication in the Official  Gazette  of such declaration,  apply to the High Court to set  aside  such  declaration  on  the  ground  that  the  issue  of  the  newspaper, or the book or other document, in respect of which  the declaration was made, did not contain any such matter as  is referred to in sub-section (1) of section 95.

(2) ……………………................................................

(3) ……………………...............................................

(4) The High Court shall, if it is not satisfied that the issue  of the newspaper, or the book or other document, in respect of  which  the  application  has  been  made,  contained  any  such  matter as is referred to in sub-section (1) of section 95, set  aside the declaration of forfeiture.

(5) ………………………………………………………...”

18. Section  95  of  the  Code  is  an  enabling  provision,  which,  in  the  

circumstances  enumerated  in  the  Section,  empowers  the  State  

Government to declare that copy of a newspaper, book or document be  

forfeited to the Government.  It is evident that the provision deals with  

any newspaper, book or document which is printed.  The power to issue a  

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declaration of forfeiture under the provision postulates compliance with  

twin essential conditions, viz., (i) the Government must form the opinion  

to the effect that such newspaper, book or document contains any matter,  

the publication of which is punishable under Section 124-A or Section  

153-A or Section 153-B or Section 292 or Section 293 or Section 295-A  

of the IPC, and (ii) the Government must state the grounds of its opinion.  

Therefore, it is mandatory that a declaration by the State Government in  

the form of notification, to the effect that every copy of the issue of the  

newspaper, book or document be forfeited to Government, must state the  

grounds on which the State Government has formed a particular opinion.  

A mere citation of the words of the Section is not sufficient.  Section 96  

of the Code entitles any person having any interest  in any newspaper,  

book or other document, in respect of which a declaration of forfeiture is  

made under Section 95 of the Code, to move the High Court for setting  

aside  the  declaration  on  the  ground that  it  does  not  contain  any such  

matter as is referred to in sub-section (1) of Section 95.  

19.Undoubtedly, the power to forfeit a newspaper, book or document is a  

drastic power inasmuch as it not only has a direct impact upon the due  

exercise  of  a  cherished right  of  freedom of  speech  and expression  as  

envisaged in Article 19(1)(a) of the Constitution, it also clothes a police  

officer to seize the infringing copies of the book, document or newspaper  

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and to search places where they are reasonably suspected to be found,  

again impinging upon the right of privacy.  Therefore, the provision has  

to be construed strictly and exercise of power under it has to be in the  

manner and according to the procedure laid down therein.  

20.The scope and width of a somewhat similar provision contained in  

Section 99A of the  Code of  Criminal  Procedure,  1898 (for short  “the  

1898 Code”)  was  examined by a  Constitution  Bench  of  this  Court  in  

Harnam  Das  Vs. State  of  Uttar  Pradesh  (supra).   Speaking  for  the  

majority,  A.K.  Sarkar,  J.  held  that  in  that  case  though  the  order  of  

forfeiture passed by the Government had set out its opinion that the books  

contained matters the publication of which was punishable under Sections  

153-A and 295-A of the IPC but it did not state, as it should have, the  

grounds of that opinion.  Striking down the order of forfeiture, the learned  

judge observed as under:

“(4) Two things appear clearly from the terms of this Section.  The first thing is that an order under it can be made only when  the Government forms a certain opinion.  That opinion is that  the  document  concerning  which  the  order  is  proposed  to  be  made,  contains  “any  matter  the  publication  of  which  is  punishable under Section 124-A or Section 153-A or Section  295-A of the Penal Code.” Section 124-A deals with seditious  matters, Section 153-A with matters promoting enmity between  different  classes  of  Indian  citizens  and  Section  295-A  with  matters insulting the religion or religious beliefs of any class of  such citizens.  The other thing that appears from the Section is  that  the  Government has  to  state  the  grounds  of  its  opinion.  The  order  made  in  this  case,  no  doubt,  stated  that  in  the  

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Government’s  opinion  the  books  contained  matters  the  publication of which was punishable under Sections 153-A and  295-A of the Penal Code.  It did not, however, state, as it should  have, the grounds of that opinion.  So it is not known which  communities were alienated from each other or whose religious  beliefs  had been wounded according to the Government,  nor  why the Government thought that such alienation or offence to  religion had been caused.”

Thus, the Court observed that in the notification it was not known which  

communities were alienated from each other or whose religious beliefs  

had been wounded and why the Government thought that such alienation  

or offence to religion had been caused. It was held that if the grounds of  

opinion are not stated, the order of forfeiture must be set aside, because  

then  the  Court  cannot  be  satisfied  that  the  grounds  given  by  the  

Government justify the order.  Inter alia observing that it is the duty of  

the High Court to set aside an order of forfeiture if it is not satisfied that  

the grounds on which the Government formed its opinion could justify  

that opinion, the Court also noted that it is not the duty of the High Court  

to find for itself whether the book contained any such matter.   

21.Significance  of  setting  out  the  grounds  of  the  opinion  of  the  

Government  was  again  emphasised  in  Narayan Dass  Indurakhya  Vs.  

State  of  Madhya  Pradesh9.   It  was  observed  that  grounds  must  be  

distinguished from the opinion,  as grounds of the opinion must mean the  

conclusion of facts on which the opinion is based.  The Court said:

9 (1972) 3 SCC 676

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“6. There  is  a  considerable  body  of  statutory  provisions  which enable the State to curtail the liberty of the subject in the  interest  of  the  security  of  the  State  or  forfeit  books  and  documents  when  in  the  opinion  of  the  Government,  they  promote class hatred, religious intolerance, disaffection against  the State, etc.  In all such cases, instances of some whereof are  given below the State Government has to give the grounds of its  opinion.  Clearly the grounds must be distinguished from the  opinion.  Grounds of the opinion must mean the conclusion of  facts on which the opinion is based. There can be no conclusion  of fact which has no reference to or is not ex facie based on any  fact.”

It was also observed that mere repetition of an opinion or reproduction of  

the Section without giving any indication of the facts will not answer the  

requirement of a valid notification.  

22.Section  99A  of  the  1898  Code  again  came  up  for  consideration  

before  a  bench  of  three  Judges  of  this  Court  in  The  State  of  Uttar   

Pradesh  Vs. Lalai  Singh  Yadav10.  Emphasizing  the  importance  of  

furnishing of grounds by the Government for its opinion, speaking for the  

bench, V.R. Krishna Iyer, J. observed as under:

“8. A  drastic  restriction  on  the  right  of  a  citizen  when  imposed by  statute,  calls  for  a  strict  construction,  especially  when  quasi-penal  consequences  also  ensue.   The  imperial  authors of the Criminal Procedure Code have drawn up Section  99A with concern for the subject and cautionary mandates to  government.  The power can be exercised only in the manner  and  according  to  the  procedure  laid  down  by  the  law.  Explicitly the section compels the government to look at the  matter which calls for action to consider it as to the clear and  present danger it constitutes in the shape of promoting feelings  

10 (1976) 4 SCC 213

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of enmity and hatred between different segments of citizens or  as to its strong tendency or intendment to outrage the religious  feelings  of  such  segments  (there  are  other  proclivities  also  stated in the section with which we are not concerned for the  present purpose) and, quite importantly, to state the grounds of  its opinion.  We are concerned with the last ingredient.  When  the section says that you must state the grounds it is no answer  to say that they need not be stated because they are implied.  You do not state a thing when you are expressively silent about  it.  To state ‘is to declare or to set forth, especially in a precise,  formal or authoritative manner; to say (something), especially  in an emphatic way ;  to assert’ (Random House Dictionary).  The conclusion is inescapable that a formal authoritative setting  forth of the grounds is statutorily mandatory…..”

While reiterating that a formal authoritative setting forth of the grounds is  

statutorily  mandatory  and  the  Court  cannot  make  a  roving  enquiry  

beyond the grounds set forth in the order and if the grounds are left out  

altogether then there is nothing available to the Court to examine and the  

notification must fail, the Court also observed that the grounds or reasons  

linking the primary facts with the forfeiter’s opinion need not be stated at  

‘learned length’.  In some cases, a laconic statement may be enough; in  

others a longer ratiocination may be proper.  The order may be brief but it  

cannot be blank as to the grounds which form the basis of the opinion on  

which the Government relies.  It was also observed that since an order of  

forfeiture constitutes a drastic restriction on the rights of a citizen, the  

relevant provisions of the Code have to be strictly construed.   

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23.At this juncture, it would be appropriate to refer to the decision of  

this Court, to which one of us (D.K. Jain, J.) was a party, in  Manzar  

Sayeed Khan Vs. State of Maharashtra & Another (supra), which arose  

on account of registration of the FIR against the Author, Publisher and  

Printer,  respondents  No.4  to  6  in  this  appeal,  on  publication  and  

distribution  of  the  book “Shivaji  –  Hindu King in  Islamic  India”,  the  

subject matter of the present case.  Quashing the FIR against the author,  

this Court observed that the intention to cause disorder or incite people to  

violence is the  sine qua non of the offence under Section 153-A of the  

IPC and the prosecution has to prove prima facie the existence of  mens  

rea on  the  part  of  the  accused.   It  was,  inter  alia,  observed  that  the  

intention of the publication has to be judged primarily by the language of  

the book, the circumstances in which it was written and published; the  

matter complained of must be read as a whole and one cannot rely on  

strongly worded and isolated passages for proving the charge nor indeed  

can one take a sentence here and a sentence there and connect them by a  

meticulous process of inferential reasoning.  Reliance was placed on the  

decision  of  this  Court  in  Ramesh  Vs. Union  of  India  and  others11,   

wherein the observations of Vivian Bose, J. (as he then was) in Bhagwati   

Charan  Shukla  Vs. Provincial  Government12, to  the  effect  that  “the  

effect  of  the  words  must  be judged from the standards  of  reasonable,  11 (1988) 1 SCC 668 12 AIR 1947 Nag 1

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strong-minded,  firm and courageous  men,  and not  those  of  weak and  

vacillating minds, nor of those who scent danger in every hostile point of  

view” were approved.     

24.Recently  in  Baragur  Ramachandrappa  and  Others  Vs. State  of   

Karnataka and Others (supra), this Court again considered the scope of  

Section 95 of the Code.  Approving the interpretation of Sections 95 and  

96 of the Code given by a special bench of the Patna High Court in Nand  

Kishore Singh & etc.  Vs. State of Bihar and Another13, wherein it was  

observed  that  it  would  be  fallacious  to  mathematically  equate  the  

proceedings  under  Sections 95 and 96 of  the  Code with  a  trial  under  

Section 295-A of the IPC with the accused in the dock, the Court went on  

to elucidate that Section 95 did not require that it should be “proved” to  

the  satisfaction  of  the  State  Government  that  all  requirements  of  the  

punishing Sections including mens rea were fully established and all that  

Section  95(1)  required  was  that  the  ingredients  of  the  offence  should  

“appear” to the Government to be present.  While observing that Section  

95  of  the  Code  exemplifies  the  principle  that  freedom of  speech  and  

expression is not unfettered, this Court commended that freedom must be  

available to all and no person has a right to impinge on the feelings of  

others  on  the  premise  that  his  right  to  freedom  of  speech  remains  

13 AIR 1986 PATNA 98

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unrestricted and unfettered.  It cannot be ignored that India is a country  

with vast disparities in language, culture and religion and unwarranted  

and malicious criticism or interference in the faith of others cannot be  

accepted.   

25.It would thus, appear that no inflexible guidelines can be laid down to  

test the validity of a notification issued under Section 95 of the Code.  

Nonetheless  the  following  legal  aspects  can  be  kept  in  mind  while  

examining the validity of such a notification:

(i) The statement of the grounds of its opinion by the State  

Government  is  mandatory  and  a  total  absence  thereof  

would vitiate the declaration of forfeiture.  Therefore, the  

grounds of Government’s opinion must be stated in the  

notification  issued  under  Section  95  of  the  Code  and  

while testing the validity of the notification the Court has  

to confine the inquiry to the grounds so disclosed;

(ii) Grounds  of  opinion  must  mean  conclusion  of  facts  on  

which opinion is based.  Grounds must necessarily be the  

import or the effect or the tendency of matters contained  

in  the  offending  publication,  either  as  a  whole  or  in  

portions  of  it,  as  illustrated  by  passages  which  

Government  may  choose.   A  mere  repetition  of  an  

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opinion or reproduction of the Section will not answer the  

requirement of a valid notification.  However, at the same  

time, it is not necessary that the notification must bear a  

verbatim record of the forfeited material or give a detail  

gist thereof;  

(iii) The validity of the order of forfeiture would depend on  

the  merits  of  the  grounds.   The High Court  would set  

aside the order  of  forfeiture  if  there are no grounds of  

opinion  because  if  there  are  no  grounds  of  opinion  it  

cannot  be  satisfied  that  the  grounds  given  by  the  

Government justify the order.  However, it is not the duty  

of  the  High  Court  to  find  for  itself  whether  the  book  

contained any such matter whatsoever;   

(iv) The State cannot extract stray sentences of portions of the  

book and come to a finding that the said book as a whole  

ought to be forfeited;

(v) The intention of the author has to be gathered from the  

language, contents and import of the offending material.  

If the allegations made in the offending article are based  

on folklore, tradition or history something in extenuation  

could perhaps be said for the author;

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(vi) If the writing is calculated to promote feelings of enmity  

or hatred, it is no defence to a charge under Section 153-

A of the IPC that the writing contains a truthful account  

of  past  events  or  is  otherwise  supported  by  good  

authority.  Adherence to the strict path of history is not by  

itself a complete defence to a charge under Section 153-A  

of the IPC;

(vii) Section 95(1) of the Code postulates that the ingredients  

of the offences stated in the notification should “appear”  

to the Government to be present.  It does not require that  

it  should  be  “proved”  to  the  satisfaction  of  the  

Government that all requirements of punishing sections,  

including mens rea, were fully established;

(viii) The onus to dislodge and rebut the prima facie opinion of  

the  Government  that  the  offending  publication  comes  

within  the  ambit  of  the  relevant  offence,  including  its  

requirement  of  intent  is  on  the  applicant  and  such  

intention has to be gathered from the language, contents  

and import thereof;

(ix) The effect  of the words used in the offending material  

must be judged from the standards of reasonable, strong-

2

minded, firm and courageous men, and not those of weak  

and vacillating minds, nor of those who scent danger in  

every  hostile  point  of  view.   The  class  of  readers  for  

whom the book is primarily meant would also be relevant  

for judging the probable consequences of the writing.

26.Having  assessed  the  validity  of  notification  dated  20th December  

2006  on  the  touchstone  of  the  afore-stated  principles,  we  are  of  the  

opinion that in the present case, the conditions statutorily mandated for  

exercise of power under Section 95 of the Code are lacking and therefore,  

the action of the Government cannot be sustained.   

27.It  is  plain  from  a  bare  reading  of  the  notification  that  the  

Government’s opinion, that the circulation of the said book, containing  

scurrilous and derogatory references to Shri Chhatrapati Shivaji Maharaj,  

has resulted in causing enmity between various communities and has led  

to acts of violence and disharmony and that any further circulation of the  

said book is likely to result in breach of peace and public tranquillity, is  

based on the grounds set out in the preamble to the notification, viz., the  

author has made several derogatory references, specified in the Schedule  

appended to the notification, regarding Shri Chhatrapati Shivaji Maharaj,  

in  particular  about  his  parentage  and  the  Bhosale  family;  the  said  

derogatory  references  are  prejudicial  to  the  maintenance  of  harmony  

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between different  groups and has disturbed the public  tranquillity,  the  

publication and circulation of the book has not only already resulted in  

causing enmity between the persons who revere Shri Chhatrapati Shivaji  

Maharaj  and  other  persons  who  may  not  so  revere  but  is  likely  to  

continuously cause such enmity and that for publication of the book an  

FIR for offences under Sections 153 and 153-A read with Section 34 of  

the IPC has been registered against the author.   

28.Thus,  being  one  of  the  essential  conditions  for  exercise  of  power  

under Section 95 of the Code, that the publication contains matter which  

is an offence under various provisions of the IPC, the opinion of the State  

Government is based on the factum of registration of an FIR against the  

author and others for offences punishable under Sections 153 and 153-A  

read with Section 34 of the IPC.  As stated above, vide order dated 5th  

April,  2007, in  Manzar Sayeed Khan’s case  (supra),  this  Court while  

quashing  the  same  FIR which  was  registered  against  Prof.  James  W.  

Laine and others and was referred to in the notification has held that the  

offending articles in the book do not constitute an offence under Section  

153-A of the IPC.  It is explicit that the entire edifice of the impugned  

notification  being  based  on  the  registration  of  the  said  FIR,   it  gets  

knocked off by the decision of this Court.  Furthermore, it is stated that  

“the Government of Maharashtra is of the opinion that the circulation of  

2

the said book containing scurrilous and derogatory references against Shri  

Chhatrapati  Shivaji  Maharaj  has  resulted  in  causing  enmity  between  

various communities and has led to acts of violence and disharmony and  

that any further circulation of the said book is likely to result in breach of  

peace and public tranquillity and in particular between those who revere  

Shri  Chhatrapati  Shivaji  Maharaj  and  those  who  may  not;  and  cause  

disturbances to public tranquillity and maintenance of harmony between  

such  groups  and  as  such  the  said  book  should  be  forfeited”.  We  are  

unable  to  persuade  ourselves  to  agree  with  learned  counsel  for  the  

appellants that only the subjective satisfaction of the State Government  

was called for and the matter covered by the notification is sufficient and  

cannot be assailed.  It is manifest that the notification does not identify  

the communities between which the book had caused or is likely to cause  

enmity.   Therefore,  it  cannot be found out  from the notification as  to  

which communities got outraged by the publication of the book or it had  

caused hatred and animosity between particular communities or groups.  

We feel that the statement in the notification to the effect that the book is  

“likely  to  result  in  breach  of  peace  and  public  tranquillity  and  in  

particular  between those  who revere  Shri  Chhatrapati  Shivaji  Maharaj  

and  those  who  may  not”  is  too  vague  a  ground  to  satisfy  the  afore-

enumerated  tests.   Moreover,  the  High  Court  has  also  noted  that  the  

learned Associate Advocate General was unable to produce or disclose  

2

any material or information to find out as to which were the groups based  

on religion, race, language or religion or caste or communities who do  

not revere Shri Chhatrapati Shivaji Maharaj.  If that be so, no fault can be  

found with the finding of the High Court to the effect that there is nothing  

on record on the basis whereof the Government could form the opinion  

that  the  book was  likely  to  promote  disharmony or  feeling  of  enmity  

between  various  groups  or  likely  to  cause  disturbance  to  public  

tranquillity and maintenance of harmony between various groups.     

29.In view of the foregoing, we are in agreement with the High Court  

that  the notification of forfeiture,  dated 20th December 2006, does not  

fulfil the mandatory requirements of sub-section (1) of Section 95 of the  

Code and is, therefore, invalid.  No ground is made out warranting our  

interference  with  the  impugned  judgment.   The  appeal  is  dismissed  

accordingly, leaving the parties to bear their own costs.  

…………………………….J. (D.K. JAIN)

                              …………………………….J.  (H.L. DATTU)

NEW DELHI; JULY 9, 2010

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